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ELCDismissedNot stated in the judgment (Plaintiff's suit filed 26th June 2019)· [2020] KEELC 1206 (KLR)

Mary Kerubo Ogoti v Teresa Bitutu Onderi [2020] KEELC 1206 (KLR)

Environment and Land Court
22 September 2020
JOJ. M. ONYANGO
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii court refused to protect a land buyer in occupation, holding that paying partly for land and living on it doesn't make you its legal owner.

What this practically means

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Executive summary

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This is a ruling by J. M. Onyango, Judge of the Environment and Land Court at Kisii, delivered on 22nd September 2020, on a Notice of Motion dated 9th January 2020 by the Defendant, Teresa Bitutu Onderi. She sought interlocutory injunctions restraining the Plaintiff, Mary Kerubo Ogoti, from entering, wasting, trespassing onto or interfering with her possession of L.R. No. Nyaribari Chache/B/B/Boburia/6939 pending the hearing of the application and the main suit, in which the Plaintiff had sought, inter alia, an eviction order. The Applicant claimed she purchased the land in 2007 from Stephen Kinara Ogori, took occupation, and was a bona fide purchaser for value without notice. The Plaintiff countered that, following a Land Dispute Tribunal decision adopted as judgment in Kisii CMCC Land Dispute Case No. 77 of 2011 and subsequently nullified in ELC Petition No. 22 of 2014, the Land Registrar had restored the title to her, and she is the registered proprietor. The court framed a single issue: whether the Applicant met the threshold for injunctive relief under Giella v Cassman Brown. Applying the test sequentially, the court held that the Applicant, having only made part payment and being neither registered proprietor nor able to displace the registered title under Section 26 of the Land Registration Act, failed to establish a prima facie case with a probability of success; mere occupation does not equate to ownership. Having failed at the first hurdle, the court declined to consider irreparable harm or balance of convenience. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Defendant/Applicant established a prima facie case with a probability of success to warrant a temporary injunction

Holding

No. The Applicant made only part payment, was not the registered proprietor, and the suit property was registered in the Respondent's name following a decree in Petition No. 22 of 2014; the application was dismissed.

Reasoning

The court applied the Giella v Cassman Brown test sequentially. On the material presented, the Applicant bought the land from a third party in 2007 and took occupation, but the title had been restored to the Respondent pursuant to a decree of the ELC in Petition No. 22 of 2014 nullifying the Tribunal's decision. Under Section 26 of the Land Registration Act the registered proprietor is prima facie the absolute owner, and occupation alone is not ownership. Having failed at the first hurdle, the other two Giella limbs fell away.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • The Giella v Cassman Brown conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially; failure at the first hurdle (prima facie case) obviates consideration of the other two
  • Mere occupation of land does not equate to ownership

Court orders

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  1. 1.The Notice of Motion dated 9th January 2020 is dismissed
  2. 2.The costs of the Application shall be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (6)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Robert Mugo Wa Karanja vs Eco bank (Kenya) Limited & Another
    (2019) eKLR
  • Mrao Ltd vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    (2001) Vol. I EA 86
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (injunctive relief sought in a pending land suit); no specific provision cited

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Kerubo Ogoti v Teresa Bitutu Onderi [2020] KEELC 1206 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaintiff's suit filed 26th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1206/eng@2020-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.